Garcia v. Eric H. Holder Jr.

• Decision Date: 02 November 2011
• Docket Number: No. 08–73004.,08–73004.
• Citation: 11 Cal. Daily Op. Serv. 13537,659 F.3d 1261,2011 Daily Journal D.A.R. 16124
• Parties: Jorge Raul GARCIA, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

659 F.3d 1261

11 Cal. Daily Op. Serv. 13,537

2011 Daily Journal D.A.R. 16,124

Jorge Raul GARCIA, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 08–73004.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 30, 2011.Filed Nov. 2, 2011.

Kristen Jackson, Public Counsel Law Center, Los Angeles, CA, for the petitioner-appellant.David H. Wetmore and Robbin Kinmonth Blaya, Office of Immigration Litigation, Washington, D.C., for the respondent-appellee.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A072–897–225.Before: MARY M. SCHROEDER and RONALD M. GOULD, Circuit Judges, and RICHARD SEEBORG, District Judge.^*

OPINION

GOULD, Circuit Judge:

Jorge Raul Garcia (“Garcia”) petitions for review of the Board of Immigration Appeals's (“BIA”) dismissal of his appeal of an Immigration Judge's (“IJ”) decision denying his application for cancellation of removal. The BIA concluded that Garcia's 1992 parole as a Special Immigrant Juvenile, under 8 U.S.C. § 1255(h), did not qualify as an admission “in any status” as required by 8 U.S.C. § 1229b(a)(2) and, as a result, found Garcia statutorily ineligible for cancellation of removal because he did not establish seven years of continuous physical presence after having been “admitted in any status.” We disagree and hold that parole as a Special Immigrant Juvenile, under 8 U.S.C. § 1255(h), qualifies as an admission “in any status” for the purposes of 8 U.S.C. § 1229b(a)(2). We grant Garcia's petition and remand to the BIA for further proceedings consistent with our opinion.

I

A

Garcia was born in Mexico in 1984 to Mexican citizen parents. Garcia had a difficult and tragic childhood in Mexico. His father was incarcerated for murdering his mother, and in his youth Garcia suffered a closed head injury, a type of traumatic brain injury. Garcia entered the United States without inspection in 1992 and soon thereafter entered the foster care system in California. His long-term social worker described him as “respectful” and “good hearted.” Garcia was diagnosed with bi-polar disorder while in foster care. He went to special education classes in school. He has been diagnosed with diabetes and assessed as having “low-average” intelligence. Garcia was emancipated from the foster care system in 2004 at the age of 20. He has a U.S. citizen child.

In April 1993, when Garcia was nine years old, the Los Angeles County Department of Children and Family Services (“DCFS”) filed a petition with the state juvenile dependency court on behalf of Garcia because of allegations of severe physical abuse. On July 15, 1994, the court found Garcia a dependant child of the court, eligible for long-term foster care. The court also found “that it would not be in the best interests of the minor to be returned to his/her country of citizenship or the country of habitual residence of his/her parents.” The court ordered that the DCFS “make the necessary application for special immigrant status as a permanent resident for [Garcia].” ¹ That month, DCFS's Special Immigrant Status Unit filed an immigration application on Garcia's behalf. The application included, inter alia, an I–360 Petition for classification as a special immigrant and an I–485 Application for adjustment to permanent resident status, based on Garcia's being an undocumented foster child/Special Immigrant Juvenile.

On February 28, 2000, the immigration authorities approved Garcia's I–360 Petition and I–485 Application and gave him Legal Permanent Resident (“LPR”) status. It took more than five years for Garcia's LPR status to be approved. A likely source for that delay may have been his missing birth certificate which was added to Garcia's file in April 1999. Garcia's I–181 Memorandum of Creation of Record of Lawful Permanent Residence, reflecting his approval for LPR status, lists “92” in the field “Year Adm[itted] to U.S. or Year of Change to present [Non–Immigrant] Class.”

B

Garcia was arrested on November 13, 2005, for stealing a bicycle in Long Beach, California. The city prosecutor charged him with a misdemeanor for grand theft of property worth over $400, to which Garcia pleaded nolo contendere. See Cal.Penal Code § 487(a) (2005). Garcia was found guilty and received a suspended sentence of three years of summary probation and twenty days in county jail. On December 28, 2005, Garcia was arrested for shoplifting from a Target store in Manhattan Beach, California. Garcia was charged with petty theft with prior convictions, and with giving false information to a police officer. See Cal.Penal Code §§ 666, 148.9(a) (2005). He pleaded guilty to the theft charge, for which he received a suspended sentence of three years of formal probation and almost one year in county jail. The false information charge was dismissed.

Relying on these two convictions, in October 2006, the Department of Homeland Security (“DHS”) issued a Notice to Appear (“NTA”) charging that Garcia was removable, pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), for having, after admission, been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. Garcia admitted to the allegations in the NTA, conceded removability, and sought cancellation of removal.

An LPR is eligible for cancellation of removal if: (1) he has been “lawfully admitted for permanent residence for not less than 5 years”; (2) he “has resided in the United States continuously for 7 years after having been admitted in any status”; and (3) he “has not been convicted of any aggravated felony.” 8 U.S.C. § 1229b(a). DHS opposed cancellation of removal on the ground that Garcia lacked the required seven years of continuous residence. Under the government's interpretation, the seven-year period ran from when Garcia received LPR status in 2000. Nearly six years had lapsed between when the California juvenile dependency court ordered DCFS's Special Immigrant Status Unit to file an immigration petition for Garcia in 1994, and when immigration authorities ultimately approved the petition. The government's interpretation did not credit any of that lapsed time, leaving Garcia narrowly short of the required seven years when he was convicted for the second theft offense in January 2006.

Garcia argued that he met the seven-year duration requirement on two separate grounds. First, Garcia contended that, under § 1255(h), he was deemed paroled into the United States—which counted as an admission “in any status” under § 1229b(a)(2)—upon the filing of his Special Immigrant Juvenile Status (“SIJS”)-based immigration application in 1994, more than seven years before his second conviction. Second, he contended that his “admission” for permanent resident status could be imputed as of the date on which he became a ward of the State of California, his legal guardian, in the same way that such admission is imputed from a parent under Cuevas–Gaspar v. Gonzales, 430 F.3d 1013, 1029 (9th Cir.2005) (holding that “for purposes of satisfying the seven-years of continuous residence ‘after having been admitted in any status' required for cancellation of removal under 8 U.S.C. § 1229b(a), a parent's admission for permanent resident status is imputed to the parent's unemancipated minor children residing with the parent”). The IJ rejected these arguments and denied cancellation of removal solely on the basis that Garcia did not have the required seven years of continuous residence.

The BIA affirmed. It reasoned that § 1255(h) provided that a Special Immigrant Juvenile is deemed to have been “paroled” into the United States for the purpose of adjustment of status, but that, under the plain language of § 1255(a), which permits the Attorney General to adjust the status of individuals who have been “inspected and admitted or paroled,” being “paroled” into the United States is not the same as being “admitted.” It also declined to extend the holding of our precedent in Cuevas–Gaspar to cover the legal guardianship between the State and its ward, concluding that such a relationship is materially distinguishable from that between parents and children. The BIA dismissed Garcia's appeal, and Garcia was removed to Mexico. Garcia petitions for a review of the BIA's decision.

II

The issues on review are (1) whether Garcia's SIJS-based parole for adjustment of status under § 1255(h) constitutes an admission “in any status” for purposes of eligibility for cancellation of removal under § 1229b(a)(2), and (2) whether Garcia should be imputed lawful admission from his legal guardian, the State of California. We “review de novo the BIA's determination of questions of law, except to the extent that deference is owed to its interpretation of the governing statutes and regulations.” ²Garcia–Quintero v. Gonzales, 455 F.3d 1006, 1011 (9th Cir.2006).

Where the statute is unambiguous and congressional intent is clear “both the court and the agency must give effect to the unambiguously expressed intent of Congress.” Id. at 1012 (quoting Chevron U.S.A., Inc. v. Natural Resources Def. Council, 467 U.S. 837, 843–44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (internal quotation marks omitted)). Where congressional intent is unclear, a reviewing court must give deference to an agency's statutory interpretation provided it is not “arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 844, 104 S.Ct. 2778. “ Chevron deference, however, does not apply to all statutory interpretations issued by agencies.” Miranda Alvarado v. Gonzales, 449 F.3d 915, 921 (9th Cir.2006). An agency's statutory interpretation only “qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U.S. 218, 226–27, 121 S.Ct. 2164, 150...